New equality law: Religion or belief
Section three of the Personnel Today Management Resources one stop guide to new equality laws. Other sections.
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Understand what new religion/belief equality regulations mean Understand other relevant religion/belief legislation Learn about key legal cases |
The premise
It is unlawful to discriminate against a person in employment situations - from recruitment to retirement or in vocational training - because of their religion or belief, or because that person is believed to be of a certain religion or belief, or associates with a person of a particular religion or belief or when an individual refuses to carry out a discriminatory instruction to discriminate against members of a particular religion. That said, it is illegal unless there is a Genuine Occupational Requirement (GOR) for an employee or contract or agency worker to be of a particular religion faith or belief. Political opinions or affiliations - assuming they do not fall within the meaning of 'religion or belief' - are not protected from employment discrimination under current legislation.
The law
The Employment Equality (Religion or Belief) Regulations 2003 took effect in December 2003.
What this means: The law does not explicitly define 'religion' or 'belief', nor does the law provide a list of 'approved' religions or beliefs. Therefore, employers can expect it to protect belief systems beyond the more well-known and mainstream religions, for example, nature-based faiths and Humanism. Broadly, the terms religion and belief refer to collective worship, profound life philosophy or spiritual values, and probably to the state of having no belief system.
While discrimination on the grounds of religion or belief is outlawed in most employment situations, the rare exemption would need to be proven to be a GOR. Only an employment tribunal or higher court can give an authoritative ruling on a GOR's validity. (See Genuine Occupational Requirement under The Definitions.)
Who is protected? Those protected under the law include current employees and job applicants, apprentices, some self-employed workers, contract workers, current and prospective partners and people already in or seeking vocational training.
The definitions
Discrimination
Treating a person less favourably than others because of:
This includes: not hiring someone, dismissing someone, refusing them training and/or promotion, and giving them less favourable working or training conditions because they follow, or don't follow, a certain religion or belief.
Applying criteria, provision or practice which puts people of a particular religion or belief at a disadvantage unless it can be objectively justified. Objective justification means that the employer must show the provision, criterion or practice is a proportionate means of achieving a legitimate aim.
Unwanted conduct, where on the grounds of religion or belief, a person violates someone's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. Lack of intention is not a defence. Note: Harassment provisions should also protect against harassment based on the perpetrator's religion or belief as well as that of the victim. Direct discrimination provisions apply only to the victim's religion or belief.
Less favourable treatment because the victim brought proceedings under this law, gave evidence in connection with such proceedings, or alleged that someone had broken this law. This includes where the discrimination is because the victim intended to do any of these things or it was suspected that the victim had done, or intended to do any of them. A claim of victimisation is not dependent upon it being shown that the complainant was discriminated against on grounds of religion or belief.
Discriminating against someone, in certain circumstances, after the working relationship has ended, such as in giving a reference.
Ethnicity
A sense of cultural and historical identity based on belonging by birth to a distinctive cultural group.
Genuine Occupational Requirement (GOR)
There are two kinds - one is referred to as a 'general' GOR, and the other as 'the religious organisations GOR'. The first instance exists where an employer can show that, with regard to the nature of the work, a particular religion or belief is a genuine and determining, or decisive, occupational requirement, and that it is 'proportionate' to apply the requirement. The British Humanist Association calls this the GDOR, with the term 'determining' differentiating the two GORs in part.
The other GOR involves an organisation showing that it has been founded on a particular religious or belief ethos, and that the ethos is central to the specific job. GORs cannot be applied as a blanket exception, and would typically be seen in higher-profile or public-facing jobs.
GORs are not a defence to discrimination by way of harassment or victimisation. In addition, they do not cover discrimination on terms of employment or as in subjecting to a detriment. For example: if a person changes their religion or belief and, as a result, is dismissed by the employer, the dismissal could be justified by the GOR, because of a requirement to have the position filled by someone of a particular religion or belief. However, demotion would be unlawful because that would qualify as "subjecting them to any other detriment".
Liability
Employers are liable for their own acts of discrimination against employees or job applicants, for any discriminatory acts committed by their employees or third-party agents in the course of employment, which could include at work, office parties, and so on, unless the employer can prove it took steps as were reasonably practicable to prevent such behaviour.
Positive action
Offer special help to people who are disadvantaged because of prejudice, stereotyping and discrimination so they may take full and equal advantage of opportunities in jobs and training. Such measures could include training current employees of a minority religion or belief for work that has historically been dominated by members of a particular religion or belief, or encouraging job applicants from minority religions. Even when undertaking positive action, however, it is essential to point out that selection and promotion are based on merit without reference to, in this instance, religion or belief.
Other relevant legislation
Provisions with impact on employment are:
Key cases
mohmed v virgin trains (2004): One of the first cases of its kind to reach an employment tribunal following the 2003 Regulations. A Muslim man, Mohsin Mohmed is claiming religious discrimination by Virgin West Coast Trains for sacking him because he refused to trim his beard shorter than his religion prescribes - which, he says, is supposed to be no shorter than fist length. Mohmed also alleges that he was ordered not to wear a skullcap. The train company contends that Mohmed was dismissed at the end of his probationary period for poor performance.
At press time, no result was expected until 2005.
The future
Some legal experts anticipate that more claims will be based on allegations of indirect discrimination. Such cases could include complaints that employers have not provided certain kinds of foods at company canteens or space for religious meditation, and that company uniforms do not allow for faith-based dictates on proper attire and grooming.
Other potential areas for concern may include requests for time off on religious holidays or holiday pay for working on days of significance for people of different faiths.
The lack of a definition for religion or belief has led some legal experts to question which belief systems are protected under the Regulations and which are not. Atheists, for instance, have no religious beliefs.
However, a precedent with regard to atheism may have been set in motion in late October 2004. The Department for Education and Skills announced a national framework for religious education, and under the framework, the government is endorsing the teaching in schools of major religions - as well as atheism - so that children are exposed to a broad spectrum of values and beliefs.
If the government takes the position that no religious belief is a form of belief for purposes of religious education, it could be argued that atheism could also be protected under the Regulations. A potentially more difficult question is whether 'non-believers', who may not have a belief system as formal as atheism, generally are covered. It is not clear whether non-believers can bring direct or indirect discrimination claims.
In an unrelated case, the Royal Navy's first registration of a Satanist demonstrates that even religions and beliefs that many consider distasteful and contrary to more mainstream faiths will be recognised under the Regulations. The sailor granted recognition has been given space on board his ship to conduct rituals and, if killed in action, he will be given a Satanist funeral, or, if not possible, a non-denominational service. The Navy has defended its actions against critics on the grounds that it is an equal opportunity employer.
In another development, in September 2004, the Government announced plans to introduce new measures that will expand the fight against religious/belief discrimination. The newly proposed measures would forbid discrimination in the provision of goods, facilities, services and premises - closing a loophole that has long distressed religious groups. While people are now protected against discrimination when they shop, rent housing or conduct other consumer business because they are a certain colour, race, nationality or national or ethnic origin, they have not been protected on the grounds of religion. Jews and Sikhs are two of the very few groups which have to date been protected under the law through a linkage of race or ethnicity and religion or belief.
Creating a discrimination-free zone
Recruitment
Advertise job vacancies to as diverse a population as possible through widely-circulated media. Opting to advertise in a specialist publication aimed at a particular religious/belief group probably won't be seen by members of other groups. And that could mean you commit indirect discrimination.
Be clear as to what duties and responsibilities the job actually involves so that potential applicants can realistically gauge whether any aspect may conflict with their religion or belief. However, don't set unnecessary selection criteria or standards that might discourage people from applying simply because of their religion or belief.
If there is a GOR for a person to be of a particular religion, faith or belief, specify that requirement in the advertisement.
Note in your advertisement if your company has a strong equality policy.
Selection
Invite candidates selected for interview or assessment centres to make any special needs known to your company or organisation before an appointment is set, so that times or dates of religious significance can be accommodated.
At interviews, focus questions on knowledge, skills and abilities needed for the job, avoid asking personal questions such as time, frequency and location of worship, for example, which could suggest possible discrimination. Further, don't ask questions about how any religious belief or practices would fit in, or not, with potential work schedules.
Retention
Training and promotion opportunities should be announced to, and available to everyone on a fair and equal basis. In the case of internal transfers or promotions, informal references - including verbal comments - between supervisors, managers and others should be fair and non-discriminatory.
Specifically where religion and belief are concerned, employers must be sensitive to a variety of workplace situations that may be affected by a person's spiritual values. For instance:
There is sometimes a thin line between an animated discussion of religion and proselytising. Just as many deeply religious people will not welcome invasive questions about their faith from fellow employees, no worker should be made to feel guilty for saying they would prefer not to be 'preached' at about another's religion or belief.
Sources include suggestions from Acas report Religion or Belief and the Workplace
At Lloyds TSB banks, it is common to see the corporate colours worn in a variety of fashions appropriate to different faiths, life philosophies and religious beliefs. These include the hijab, or scarf, worn by Muslim women, the sari favoured by Hindu women and turbans that are part of Sikh men's daily wear.
Lloyds provides the alternative clothing as uniforms, or career wear, to staff members requiring it to follow the tenets of their religion. And if an employees religious belief requires the wearing of a certain garment that the bank has not yet added to its standard career wear line-up, Lloyds will provide them with the material and pay for the clothing to be made, "as long as it is realistic", says Andrew Wakelin, senior manager, equality and diversity. "We've got a standard range, but we also have contingency plans."
A commitment to resolving the sometimes prickly issue of corporate uniform is one aspect of Lloyds' comprehensive approach to ensuring fair and equal treatment to staff members on the basis of religious belief. Initiated before the recent legislation took hold in December 2003, Lloyds' programme grew out of its earlier established effort to ensure fair and equal treatment for staff members on the basis of race and ethnicity. In-depth research involving Lloyds' staff members who belonged to racial and ethnic minorities had revealed that religious beliefs played a significant role in their lives, Wakelin says, and the company recognised that it had a responsibility to be responsive to those beliefs.
A concern which surfaced early on among minority staff members was their feeling that their colleagues, supervisors and line managers were 'quite ignorant' about their religious beliefs and practices, Wakelin says. Lloyds produced a guide to help managers navigate these areas. Included in the first version was a list of religions and faiths practised in the UK, brief explanations of their core beliefs and a rundown on holidays significant to each. It also contained suggestions for guiding managers through balancing staff needs with business needs - allowing time off for religious holidays and regular prayer sessions. The guide is regularly updated through the company intranet, with input from staff members, Wakelin says.
Other provisions Lloyds has made include:
Recently, the company has begun to put in place a monitoring-HR information system to gain fuller knowledge of how many staff members follow which religions and faiths. "We've piloted this in one of our divisions, and we've gained some interesting information," Wakelin says.
Lloyds's efforts to date to create a working environment in which followers of all religious faiths are treated fairly and with dignity have paid off in several ways. Employee feedback on regular company climate surveys has become increasingly positive, Wakelin says. Lloyds is applying the lessons learned in developing greater awareness of diversity among its employees to better serving its customers. Greetings pertinent to particular religious holidays might be sent to customers of those faiths. Also, the bank has increased its staff's awareness of Western business practices that may contradict customers' religious teachings. For example, Islam forbids the earning or paying of interest.
"We've
seen a lot, and we have a real desire to get it right for the customers too,"
says Wakelin.
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Section
1: Introduction |
